On June 1, the Industry-Wide Labor-Management Safety Committee Task Force (Task Force), composed of representatives of producers and the unions of the motion picture and television industries, submitted to the governors of California and New York a white paper proposing guidelines for the resumption of motion picture, television, and streaming production (White Paper). The White Paper presents the consensus of the Task Force regarding the circumstances under which content production can safely resume, with an emphasis on regular testing, sanitation, physical distancing, and education and training. The White Paper also addresses unique production-specific concerns, such as preventing infections from equipment that is commonly shared and not feasibly disinfected (e.g., lighting / electrical cables and certain props, costumes, accessories, wigs, and other specialty items), and special guidelines for casts that include minors or animals.…Continue Reading Industry Task Force Proposes Guidelines to Restart Production in California and New York

Recently, California Governor Gavin Newsom raised some eyebrows when he announced that state government officials anticipated publishing guidelines for the reopening of Hollywood production facilities by Memorial Day. The Governor’s announcement took many in the industry by surprise, given that producers and unions continue to wrestle with the legal obligations and operational complexities involved in…

California employers beware. In Tilkey v. Allstate Insurance Co., No. D074459 (Cal. Ct. App. Apr. 21, 2020) (Order), California’s Fourth District Court of Appeal recently affirmed a judgment on a theory of self-published defamation. In doing so, it held that the plaintiff, a former life insurance salesman for Allstate, was justly awarded damages based on his compulsion to recite the allegedly false allegations Allstate made for terminating his employment to prospective employers. …Continue Reading California Court Affirms Self-published Defamation Judgment

Individuals in the entertainment industry have started coming forward to reveal harassment they have faced throughout their careers. In response to these revelations, filmmakers and showrunners have started depicting such harassment on screen. For example, the web television series The Morning Show explores the backlash that a network faces after a popular anchor on its news and morning talk show program is involved in a sexual misconduct scandal. While fictional, The Morning Show mirrors real-life occurrences. To tell such stories as accurately as possible, filmmakers and showrunners continue to seek firsthand accounts from the individuals involved in these real-life scandals. The problem: many of these individuals signed non-disclosure agreements (NDAs) as part of a settlement.

Non-Disclosure Agreements

NDAs are descriptively named—an NDA is an agreement not to disclose certain information. In the settlement context, one party usually pays the other to stay silent, and many NDAs include a “liquidated damages” provision, which sets monetary consequences of improper disclosure of the applicable information. Despite having signed NDAs, many of the individuals who choose to share their stories do so knowing their disclosures could subject them to significant financial costs.

The NCAA has traditionally restricted college athletes from accepting any endorsements or compensation related to their participation in college sports. But less than a month after California enacted the Fair Pay to Play Act, which will prohibit the NCAA from preventing college athletes in the state from profiting off their commercial identities starting in 2023, the NCAA’s board voted unanimously to allow students across the country to benefit from the use of their “names, images, or likenesses.”

Name, Image, and Likeness

The right to profit from the commercial use of one’s name, image, and likeness, referred to as the right of publicity, prevents others from exploiting one’s identity without consent. Arguably, the NCAA’s previous policies interfered with athletes’ rights of publicity—while the NCAA and its member schools profited from college athletes’ names, images, and likenesses, the athletes received no compensation.

The New England Patriots recently released star receiver Antonio Brown following allegations of past misconduct, which Brown denies. Setting aside instances in which such clauses are prohibited by unions, Brown’s termination highlights two issues that should be carefully considered when drafting any morals clause – what constitutes a morals violation and timing.

How Bad Is Bad?

Assuming no prohibitions from relevant guilds, sports teams, studios, advertisers, and other employers may negotiate with talent over what conduct qualifies as grounds for termination on morals grounds. Some behaviors, such as sexual assault, criminal fraud, or acts of violence, are so clearly over the line that they are generally non-negotiable and always included. Defining exactly what additional conduct counts as “bad behavior” for this purpose is often highly contentious, however, and can involve many categories of behavior, with qualifiers relating to, among other things, actual damage to the employer. For instance, both parties can agree that an employee may be terminated for cause based on “bad behavior,” as defined in the contract. But what happens when the company/studio/employer seeks to terminate a relationship on morals grounds, but the talent disputes the truth of the allegations? To avoid uncertainty, the parties may wish to define what level of investigation or proof is required before a morals termination is triggered.

This Article is part of a series monitoring developments with regard to California Assembly Bill 5 and its impact on the entertainment industry.

California Governor Gavin Newsom recently signed into law Assembly Bill 5 (“AB5” or the “Bill”), which redefines the distinction between an employee and an independent contractor. AB5 is primarily targeted at gig economy companies such as Uber and Grubhub, whose workers had been classified as independent contractors up to this point. Proponents of AB5 argued that many gig economy workers worked full time but received none of the benefits commonly associated with full time employment—including overtime, minimum wage, and workers’ compensation. Consequently, AB5 was touted as providing increased benefits and rights to a growing gig economy workforce. An additional impetus for AB5 was the legislature’s desire to stem financial losses to the state as a result of worker misclassification, including the loss of tax revenues.